Cosby Trial: Cold medicine in an alleged drugging case is … nothing to sniff at.

Bill Cosby is currently on trial for an alleged sexual assault on Andrea Constand in his home near Philadelphia in 2004. Last year, a previous court case ended in mistrial. In the interim, of course, the world learned of many more allegations against the entertainer over the decades.

At various times, Bill Cosby has claimed to have given women cold or allergy medicine. This was, I’m sure, intended to sound more benign than the Quaaludes (methaqualone) that he admitted purchasing, during a deposition in the civil case Constand brought against him in 2005.  He said then that he got Quaaludes to give to women he wanted to have sex with, and also admitted that he didn’t take that drug himself, as it made him sleepy.

But the “cold medicine” pivot doesn’t point to a lack of predatory intent. A little primer about the potentially big effects of diphenhydramine is order.

We commonly know diphenhydramine as an over-the-counter remedy, in the form of a little pink antihistamine; the most well-known brand name of this drug is Benadryl. It can make people drowsy, and in fact many people informally use it on themselves (or even their pets) to coax sleep on an otherwise agitated situation. This is a relatively safe practice if no alcohol is involved, and the dose is kept low. But at doses above the recommended 25-50 mg level, there have been reports of blackouts, feelings of heavy limbs or paralysis, and disorientation. There are also methaqualone and diphenhydramine combination pills; some formulations of these are blue tablets. Higher doses of diphenhydramine alone have been made in blue tablets, as well.

Recently, concern has emerged about nightlife welcoming the “Benadryl cocktail.” For the record, this is an ill-advised mixture. People have been mixing heavier drugs, like tranquilizers, with alcohol for a long time; in the 1950s, the Miltown Martini was much in vogue. I can remember a particularly notorious dorm party at college that involved NyQuil and vodka. Most people’s interest in these concoctions is also voluntary, recreational, and for self-dosing; nonetheless, diphenhydramine can and has been used in a predatory way. Nearly any substance can be pressed into predatory service under the right circumstances. Playing armchair toxicologist, by simply guessing on the basis of a victim’s symptoms, is not wise. To use legalistic language even outside a court setting: you’re piling on additional burdens of proof that are unnecessary if you simplimage of pills falling out of a bottley take a broader view of the total circumstances. The question really is: did someone suffer exploitation or assault, in part because they could not consent or resist?

The 2015 criminal complaint against Cosby takes diphenhydramine seriously – and it should. At a high enough dose, Benadryl absolutely could produce the symptoms that Constand described.  She said that he gave her three blue pills represented to her as herbal supplements, after she mentioned feeling out of sorts. Quickly, heavy symptoms emerged – dizziness, disorientation, and difficulty moving and staying conscious. She says she was also aware of a great deal of sexual touching during this time but was unable to resist or move away.

The prosecution this time around has a refreshing approach to the drugs aspects of the case — refreshing for being circumspect. It’s an approach, I think, with the practical goal of withstanding limitations the court might have (and did previously) place upon evidence about Cosby’s alleged pattern of behavior over the decades. But the role of drugs in the complaint keeps its sights on the underlying offenses. It takes a notably different tack than previous drugging allegation cases in some state courts and before college disciplinary boards. In my 2016 book Drink Spiking and Predatory Drugging: A Modern History, I identified a common, but often perilous, temptation to make drugs that central issue in assault cases, rather than the assault itself.

The key thing here, for establishing the non-consensual nature of the encounter, is the fact of Constand’s incapacity. The specific charge related to Cosby’s drugging behavior relates to facilitation of sexual assault, that he knowingly offered drugs that would lead to the incapacity and thus could not then argue that the encounter was consensual.

In this way, Cosby’s disassembling is the issue, not whether or not Constand took narcotics, high-dose diphenhydramine, or “herbal” supplements from Cosby. She took something from him, as they both agree, and became disoriented, weak, and only sporadically conscious afterward. This criminal complaint keeps it simple, in other words: Constand was in no state to consent, and the defendant’s behavior with whatever he may have given her strongly suggests consciousness of guilt and intent.

Contrast this approach with the one used in prosecuting and confirming convictions against Jeffery Marsalis, another Philadelphia-area case where the defendant was accused of multiple serial rapes and druggings:

But in trying to establish the likelihood of drugging, the press and the courts seemed at times, disturbingly, to rest their accusations of assault on it. It was a successful gambit for them, but risky. And it once again deferred the question of what right women had to bodily integrity when voluntarily intoxicated, as many of the women also were. So much emphasis was placed on the drugs that Marsalis’ violence—his decision to rape and exploit—seemed like some mechanistically simple and inevitable outcome of his drugging scheme. For instance, the courts belabored how he could have obtained drugs through his nursing and emergency medical technician (EMT) work. But by the time of the Marsalis allegations, in the early 2000s, obtaining drugs for such a purpose was hardly difficult. Benzodiazepines were everywhere. GHB was a popular club drug. Diphenhydramine (which was brought up as a possibility) is available over the counter. Basically, anyone who wanted to drug anyone else would not find many obstacles of a chemical sort. There basically are no barriers to means, nor have there been for a very long time. [p193]

The prosecution made the same mistake when they prosecuted Marsalis for a similar case in Idaho, developing a deep expert witness roster based on a theory of GHB drugging. Toxicology evidence was negative, and was misrepresented by a detective initially, although that wasn’t the only evidence that suggested drugging. But the drugs preoccupation put the conviction in jeopardy during appeal, where Marsalis’ lawyers argued, convincingly to at least some of the appellate judges, who dissented from affirmation of conviction, that the prosecution had made a particular drug scenario the centerpiece of its case, misrepresented the evidence, and then tried to argue that it wasn’t central. Once again, however, the appellate court majority did decide that the central issue was the complainant’s lack of capacity to consent, not an intricate and well-documented road map of chemical predation. A close call, and an example of how a drug-centric shaping of a case, can jeopardize the centrality of assault upon an incapacitated person.

The Cosby complaint takes its unknowns in stride, rather than running from them, headlong into phantom evidence that then weighs down the accuser with absences. It remains to be seen whether this broader-view approach makes a difference.

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image of book cover Title is Drink Spiking and Predatory Drugging: A Modern History


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Backhanded Victim Blame and the Current Drugging Scare: excerpts

In the book, Drink Spiking and Predatory Drugging: A Modern History, I make the argument that exaggeration of the date rape drugs threat (among students, particularly, but not limited to them) has a pernicious effect on voluntarily intoxicated victims of violence and exploitation.

Situations in which drugging explanations are insisted upon when both tests and circumstances suggest otherwise has the dual negative effect of sidelining claims about the sexual assault itself, and contributing to a basically melodramatic view of the problem. Left out in the cold, then, are all the more mundane experiences that most assaulted women recognize as their own. (p 248)

One of the things I spent some time mulling over was how to present the argument in such a way that didn’t fall into the “this problem is a distraction from that problem” trap. Distraction arguments, after all, can be lazy:  take any two things happening at the same time and say that one is a distraction from the other. Obviously, surreptitious drink spiking followed by rape does happen, and I detail some of these in the book. But in the case of this drug scare, the relationship between the roofie obsession and the desire to escape any talk about voluntary alcohol consumption – for fear of victim blaming – is fairly stark and very direct, and I wasn’t the first, by far, to notice it:

Amanda Hess sarcastically called out the “date rape drugs industrial complex” as fomenting fear about a relatively rare occurrence and trying to shift talk about rape back to the lurking stranger…. Hess noted the face-saving qualities of the formulation: “Now, society is ready to accept that a rape victim is still a rape victim if she goes out to a bar with her girlfriends and has a few drinks—as long as her intoxication is capped off with a surprise roofie.” It’s basically a form of victim-blaming that manages to look like victim sympathy at first. Many opinion leaders and policy makers are squeamish about asserting the simple right of intoxicated people (women in particular) to not be assaulted, no matter how they got that way. (p. 142-143)

Hess mentioned some research I’d done with Adam Burgess and Sarah E.H. Moore on the topic. But she formulated the problem so concisely that it advanced my thinking about the topic greatly when I went to write the whole book. And then I began to find evidence of this backhanded victim blame everywhere. Tennis star Serena Williams, opining in 2013 about the Steubenville rape case, infamously exemplified the attitude in a Rolling Stone interview:

“I’m not blaming the girl, but if you’re a 16-year-old and you’re drunk like that, your parents should teach you: Don’t take drinks from other people. She’s 16, why was she that drunk where she doesn’t remember? It could have been much worse. She’s lucky. I don’t know, maybe she wasn’t a virgin, but she shouldn’t have put herself in that position, unless they slipped her something, then that’s different.” (Williams, quoted in RS, 6.18.13)

Then that’s different: it’s “real rape.” The fear women have of blame for their own victimization is not irrational; it is grounded in the harsh judgment of intoxicated victims. Williams was roundly criticized for these remarks, and she did eventually walk them back. But this was just a celebrity version of a widespread but often unacknowledged attitude, that characterizes not only victim blamers but, more troublingly, people who claim to be victim defenders, including campus anti-rape activists, journalists, district attorneys, and legislators.

To expect a person who has been assaulted while drunk or high to take on the additional burden of pretending they were “plied” with drugs or alcohol as the only route to the legitimacy of their experience of violence is doubly burdensome. It denies the larger reality of drug and alcohol use across the world as a route to pleasure-seeking and sociability. It favors only the sober victim, the old-school innocent victim against whom all the rest are measured. (261)

Forget the Screaming Headlines about Drink Spiking on Campus

The news and screaming headlines surrounding the release of a new research study on drink spiking focused on what was hailed as a surprising new discovery about the problem. Women’s Health noted that the percentage of people victimized was appalling, and Cosmopolitan seemed both horrified and somehow relieved that it wasn’t just “an urban myth.” I wonder what number of drink spikings might be taken in stride – I do hope the answer to that remains ‘none’ despite all the misleading fanfare. But you can’t blame the press entirely here. As a social science researcher and writer, I know that it’s very hard to control the media spin on your research, but a press release about the study issued by the American Psychological Association (APA) dodges the study’s limitations and also, oddly enough, its strengths.
“Just a Dare or Unaware?” by Suzanne Swan and associates is being published in the research journal Psychology of Violence. The featured findings do sound pretty dire. But taking a more granular look at the research — and giving better attention to the toxicology and other public health literature, should temper the creepy press enthusiasm a little here.
The researchers developed a pretty interesting survey data set on drink spiking, which suggests that about 7.8% of the college student respondents believed they’d been given drug-spiked drinks. It was an impressively large, multi-campus survey in the US (just over 6,000 respondents.) More than 1% said they’d spiked other people’s drinks. Swan and her associates carefully note that there’s no way to know whether the respondents were really drugged, or whether they mistook their symptoms of excess alcohol for something more sinister. As we can see, the press doesn’t seem to see that as much of a problem, and assumes that suspicion of drugging is indicative of it. It isn’t.
Most toxicology studies — including all of the ones briefly cited in “Just a Dare” — strongly indicate that most people who believe they’ve been drugged and seek help at emergency rooms have not been. Most commonly, they present with extremely high blood-alcohol levels, and sometimes common street drugs. If you want to read a good summary of this research, David Grimes article in The Guardian explains much of the consensus in the field, and reiterates scientists’ plea to pay greater attention to alcohol itself. (And here is a starter bibliography I put together for my recently published book on the topic, Drink Spiking and Predatory Drugging: A Modern History, from Palgrave Macmillan.)
That aside, it seems to me that the press, and to some extent the researchers, have kind of buried the real striking findings here. First, the new study sheds fascinating light on the myriad reasons for drink spiking — both the reasons as interpreted by people who suspect it was done to them and those that say they drugged others. It doesn’t actually refute the urban myth analysis; indeed, it largely supports it. The researchers unfortunately insist on using Weiss and Colyer’s 2010 article in Deviant Behavior and the article I co-authored in 2009 with Adam Burgess and Sarah E.H. Moore in the British Journal of Criminology as a kind of fake touchstone for an “it’s all an urban legend” trope, against which they present what they claim is their own “no, it’s not” data. But both of these articles were about the date rape drugging scare, and in particular the scenario by which a stranger slips a drug into a drink at a bar or party and then hauls off the compromised victim to a private place to sexually assault them. Other social scientists (Valverde and Moore; Berrington and Jones) have pointed out problematic aspects of this scaremongering, early on, from a gendered violence standpoint.
Also buried in Swan’s study is the finding that in a sample of 6,064 students, 67 report being drugged and then subject to unwanted sex (acceding to verbal coercion or hectoring, such as the threat to end a relationship), or actual forced sex. That’s 1.1% of the total sample, and 14.5% of the students who report a suspected drugging experience. (It looks like an additional 13 students suspect sexual victimization, but weren’t sure.) In other words, most people attribute drugging incidents to motives other than the chemically-facilitated rape that the press has touted as an omnipresent danger for more than 20 years. The “date rape drugs” scare has contributed to attempts to breathe new life into the War on Drugs and has people focused on so-called “predator drugs” that are mostly consumed voluntarily, for pleasure or to manage other drugs’ let-down symptoms. According to the respondents in Swan’s study who suspect they were drugged — about a third of whom were male — the some commonly surmised reasons were variations on intended fun and recreation (such as “to loosen me up” and “to have more fun.”) Some said it might have been for malicious reasons, or a mistake. A surprising number (47 respondents) said they just didn’t know.
As for the study’s claim that 7.8% is “higher than expected” — I suppose it all depends on how you see it: That’s honestly lower than even I would have expected, given the hype of the last two decades. I certainly can concur with Swan et al.’s conclusion that public health and public safety interests need to focus on developing interventions that “move beyond the exclusive focus on sexual assault and should address the varied motives of those who drug others.”

[15 scientific studies on drink spiking]   [a summary of scientific consensus on spiking]